Responding to QWR or Sending Loan Statement Under Section 2605 of RESPA does not constitute an action prohibited by the automatic stay provisions of the Bankruptcy Code

In response to a servicer’s proof of claim representing pre-petition arrearages the debtor in Saylor v. Select Portfolio Servicing, Inc., 3:07-cv-00229 (M.D.Ala., June 9 2008) filed a Qualified Written Request under § 2605 of RESPA to review the charges the servicer assessed under the mortgage. Some of the charges predated the confirmation of the plan so the debtor commenced an adversary action charging the servicer with violating the automatic stay. The court determined that for there to be a valid claim under § 362 there must be action specifically prohibited by § 362 on the creditors part. The charges to the creditor’s account were merely bookkeeping entries and by responding to the QWR the creditor was not trying to collect them. The court refuse[d] to find that merely sending a transaction history report and payoff letter in response to a request from the debtor violates the automatic stay when there is no allegation that the mortgage company attempted to collect the debt.

A similar result was reached in Pultz v. Novastar Mortgage, Inc., 2008 WL 2471892 (Bkrtcy.D.Md. June 16, 2008) where the Bankruptcy court concluded that a servicer’s statutorily mandated duty under RESPA to send notice of the transfer of servicing rights does not violate the automatic stay.

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